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Ontario 



Workplace Safety and Insurance Appeals Tribunal 

Tribunal d'appel de la securite professionnelle et 
de I'assurance contre les accidents du travail 



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Digitized by the Internet Archive 
in 2013 



http://archive.org/details/annualreport1998onta 



ANNUAL 



REPORT 




Workplace Safety and Insurance Appeals Tribunal 

505 University Avenue, 2nd Floor 

Toronto, Ontario M5G 2P2 

ISSN: 1480-5707 

©1999 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



TABLE OF CONTENTS 



INTRODUCTION v 

CHAIR'S REPORT 

MILESTONES 1 

HIGHLIGHTS OF THE 1998 CASE ISSUES 2 

The Tribunal's Jurisdiction under the Workplace Safety and 

Insurance Act 3 

Board Policy under the Workplace Safety and Insurance Act 5 

Right to Sue Applications 7 

Non-economic Loss Awards 7 

Employer Issues 8 

Occupational Disease 10 

Miscellaneous 11 

APPLICATIONS FOR JUDICIAL REVIEW AND OTHER COURT MATTERS 12 

Judicial Reviews Outstanding 12 

OMBUDSMAN COMPLAINTS AND OTHER ACTIVITY 13 

TRIBUNAL REPORT 

VICE-CHAIRS, MEMBERS AND STAFF 15 

OFFICE OF COUNSEL TO THE CHAIR 15 

TRIBUNAL COUNSEL OFFICE 15 

Intake 16 

Case Analyst Group 16 

Early Resolution Stream 17 

Pre-hearing Legal Workers 17 

Post-hearing Legal Workers 18 

Lawyers 18 

Medical Liaison Office 18 

MLO and the Medical Component 20 

INFORMATION DEPARTMENT 23 

Library Services 23 

Publications 24 

STATISTICAL SUMMARY 25 

Cases Received 25 

Case Dispositions 26 

Remaining Inventory 27 

Comparative Statistics for 1998 Hearings and Decision Productivity 27 

FINANCIAL MATTERS 28 



in 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1998 



APPENDIX A 

Vice-Chairs and Members in 1998 39 

Vice-Chairs and Members - Reappointments 40 

New Appointments during 1998 41 

Senior Staff 41 

Medical Counsellors 42 

APPENDIX B 

Auditors' Report and Financial Statements 43 



IV 



Introduction 









The Workplace Safety and Insurance Appeals Tribunal ("WSIAT" or 
"Tribunal") considers appeals from final decisions of the Workplace Safety and 
Insurance Board ("WSIB" or "the Board") under the Workplace Safety and Insurance 
Act, 1997 ("the Act"). The Act, replacing the Worker's Compensation Act, came into 
force January 1, 1998. The Tribunal is a separate and independent adjudicative 
institution. It was formerly known as the Workers' Compensation Appeals 
Tribunal, until the name was changed pursuant to section 173 of the Act. 

This volume contains the Tribunal's Annual Report to the Minister of Labour 
and to the Tribunal's various constituencies, together with a Report of the Tribunal 
Chair. It is primarily a report on the Tribunal's operations for fiscal year 1998 and 
comments on some matters which may be of special interest or concern to the 
Minister or the Tribunal's constituencies. 



The Tribunal Report focuses on Tribunal activities, financial affairs and the 
evolving administrative policies and practices. 



Chair's 




Report 



MILESTONES 

Nineteen ninety-eight may go down in Tribunal history as the "year of the 
avalanche." The Workplace Safety and Insurance Act, 1997, took effect January 1, 1998. 
The inclusion of time limits in the new legislation helped to push the number of 
new appeals flowing into the Tribunal beyond the 10,000 level. This compares with 
approximately 2,300 new appeals in 1995 and 5,000 in 1997. The Tribunal also saw 
the complexity of its case mix continue to increase as the new legislation eliminated 
some of the more basic appeals in areas such as access to non-medical records. The 
introduction of single adjudication, as opposed to tripartite panels, meant a 
reduction in the roster of full-time employer and worker Members from 14 to 6. 
The requirement that the Tribunal apply Board policy created a new need for new 
administrative processes between the Board and the Tribunal to comply with the 
new legislative scheme as appeal volumes surged upwards. In addition to adapting 
to legislative and adjudicative changes in 1998, the Tribunal also entered into 
service-sharing arrangements with the Ontario Labour Relations Board and the Pay 
Equity Hearings Tribunal as the three agencies co-located at 505 University Avenue 
in Toronto. 



As the inflow of appeals continued its steep climb, the Tribunal continued to 
increase its productivity. In 1997, the Tribunal had increased its productivity by 
22% as dispositions edged over the 3,000 mark. In 1998, dispositions totalled 4,655, 
an increase of more than 50% over the record 1997 level. The 4,655 dispositions did 
not include approximately 3,000 "bookmarked" cases which were processed and 
classified as "inactive" because they were filed as protection against the new 
limitation period. Unfortunately, the significant increase in production pales by 
comparison with the increase in the inflow of new appeals. The Tribunal continues 
to work at expanding its production capacity in an effort to provide quality 
adjudication on a timely basis. Injured workers, employers, their representatives, 
the government, the Ombudsman and the Ministry continue to support the 
Tribunal's focus on quality of service and, in particular, decisions which are clear 
and cogent. While it may be difficult to calculate as a performance measure, judicial 
appreciation of the Tribunal's product may be gleaned from the Tribunal's 
unblemished record in judicial reviews of its decisions. As volumes of decisions 
grow, sustaining this record will represent a significant challenge; however, the 
Tribunal is committed to maintaining its reputation for reasoned decision-making. 

Obviously, a dramatically expanded inflow and resulting active appeals 
inventory will require significant changes in the Tribunal processes. The 1998 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



inflow represents a more than 400% increase over the 1995 inflow of 2,300 cases. 
The Tribunal is not going to receive a 400% increase in resources and must revise 
its procedures to cope with a massive active inventory. During 1999, the Tribunal 
will be experimenting with different forms of alternative dispute resolution (ADR), 
screening of cases with a view to directing those cases into appropriate streams 
such as the complex case stream, ADR stream, regular hearing stream and special 
projects like batch-hearing days (where a number of basic cases will be heard on 
one day). Representatives will probably be required to file a certificate of readiness 
certifying that a case is ready to proceed to hearing before the Tribunal assigns a 
hearing date. This should prevent the Tribunal from losing hearing days to 
unnecessary adjournments. Obviously, the Tribunal will also require an increase in 
its roster of adjudicators and the necessary support services for those adjudicators 
to ensure continued quality of service. 

The Tribunal has been through an extremely turbulent period over the last 
three years, with various reviews raising questions about the role and continued 
existence of the Tribunal. Changes in legislation, dramatic increases in appeal 
volumes, the resulting need for significant changes in the Tribunal's operation have 
all contributed to a feeling of uncertainty among Tribunal employees. Nineteen 
ninety-nine should be a year of restructuring and, with new processes and 
resources in place, the Tribunal will then be poised to deal constructively with its 
massive inventory over the following 24 months. Without the uncertainty 
surrounding the Tribunal's ongoing role within the workplace safety and insurance 
system, Tribunal employees can focus on processing appeals on a more timely 
basis. The task will not be easy. It will require the ongoing co-operation of the 
Board, Ministry, and injured worker and employer communities to ensure that the 
emphasis on quality of adjudicative service prevails throughout the entire system. 

While these have been stressful times for Tribunal personnel, there is a sense of 
optimism and renewal as both the Board and the Tribunal dedicate themselves to 
improving the system. With the co-operation of all those involved in the workplace 
safety and insurance system, the next three years may one day be viewed as a 
milestone, not in terms of volume of cases, but as the foundation period for a new 
and improved system. 



HIGHLIGHTS OF THE 1 998 CASE ISSUES 

This section highlights some of the legal, factual and medical issues dealt with 
by the Tribunal during 1998. 

The Workers' Compensation Reform Act, 1997, S.O. 1997, c. 16, commonly known 
as Bill 99, came into force on January 1, 1998. Schedule A of Bill 99 enacted the 
Workplace Safety and Insurance Act, 1997 (WSIA). The WSIA creates a scheme of 
workplace insurance for accidents occurring after December 31, 1997, and continues 
the pre-1997 Workers' Compensation Act, as amended, for pre-1998 injuries. The 
pre-1997 Act, in turn, continues the pre-1985 Act (for accidents occurring before the 
first day of April 1985) and the pre-1989 Act (for accidents occurring on or after the 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 99$ 



first of April 1985 and before the second day of January 1990). Thus, during 1998, 
the Tribunal adjudicated cases pursuant to provisions in the WSIA, the pre-1997 
Act, the pre-1989 Act and the pre-1985 Act. For convenience, cases dealing with the 
WSIA are reviewed first. 

The Tribunal's Jurisdiction under the Workplace Safety 
and Insurance Act 

A number of provisions in the WSIA had immediate effect on the Tribunal's 
jurisdiction to hear new appeals in 1998, even though substantive provisions in the 
earlier Acts continued to apply to the merits of those appeals. As of January 1, 
1998, the WSIA provides that cases are generally to be heard by a Vice-Chair sitting 
alone. The Tribunal Chair has a discretion, where he considers it appropriate, to 
assign a case to a tripartite panel. The Chair has indicated that full panels are 
particularly useful in the following situations: 

1. cases involving medical /scientific issues which have important implications 
for the compensation /workplace insurance system; 

2. cases involving novel legal interpretations, particularly under new 
legislation; 

3. cases involving significant credibility findings and which therefore require 
a "jury-like" determination; 

4. appeals in areas where Tribunal caselaw is still developing and a need 
exists for a particularly well-reasoned decision reflecting both employer 
and worker perspectives; 

5. cases in which the Tribunal is experimenting with new hearing techniques 
or procedures. Side Members will provide useful input from an employer's 
and worker's perspective on these changes or techniques. This should help 
maintain confidence in the adjudicative system during a Bill 99 transitional 
period; and 

6. cases with significant financial consequences for the Insurance Fund, 
particularly where only one party is participating. 

Tribunal cases have held that the decision to assign cases to a tripartite panel 
can only be made by the Tribunal Chair and is not subject to review by a 
Vice-Chair or Panel assigned to hear an appeal. In a rare case, which raises issues 
of considerable legal significance with substantial ramifications, a Vice-Chair might 
consider adjourning a hearing to allow a party to make a request for a tripartite 
panel to the Tribunal Chair. See Decisions No. 1030/98 (1998), 47 W.S.I. A.T.R. 228, 
1294/981 (November 13, 1998) and 1695/98 (December 4, 1998). 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1998 



The transitional provisions in the WSIA also had immediate effect. 
Section 112(4) provides that, where a Panel had commenced a hearing or 
consideration of an application or appeal before 1998, the Panel may continue to 
perform its duties as though the WSIA had not come into force. It has been held 
that the purpose of section 112(4) is to distinguish between appeals commenced 
before and after January 1, 1998, in order to protect the vested rights of those 
whose hearings have started. Thus, it is not necessary for the same Panel which 
commenced the hearing to be the one that completes it for section 112(4) to apply 
(Decision No. 1069/9712 (1998), 45 W.S.I.A.T.R. 147). Reconsideration applications 
brought after January 1, 1998, also continue to be governed by the pre-1997 
legislation (Decision No. 707/97R (1998), 46 W.S.I.A.T.R. 106). However, the fact that 
a hearing was scheduled in 1997 or that the Tribunal Counsel Office reviewed a file 
is not sufficient to continue the application of the unamended pre-1997 Act 
(Decision No. 1210/98 (1998), 48 W.S.I.A.T.R. 199). 

Another major change in the WSIA is the requirement that appeals be brought 
to the Tribunal within six months or "such longer period as the Tribunal may 
permit." Thus, as of June 30, 1998, the six-month time limit began to affect appeals. 
In deciding whether to grant a time extension, the Tribunal has considered a 
number of factors such as: (1) whether the appeal involved a pre-1998 Board 
decision (before the Board began routinely giving notice of the time limits); (2) the 
lateness of the appeal; (3) the reasons for the failure to file on time; (4) evidence of 
an intention to bring the appeal; (5) what is at stake; (6) any prejudice to other 
parties; (7) how the appeal relates to appeals that were filed in time; (8) whether 
there is substantial new evidence; (9) whether there is good reason to doubt the 
correctness of the Board decision and, if so, why this reason was not known in 
time; (10) whether there is a significant defect in the process or content of the 
decision which, if corrected, would probably change the result; (11) whether the 
extension of the time limit outweighs the general importance of closure; 
(12) whether the appeal is brought in good faith; and (13) the real merits and justice 
of the case (see Decisions No. 1493/981 (1998), 48 W.S.I.A.T.R. 239, and 1522/9812 
(1998), 48 W.S.I.A.T.R. 252). 

The six-month time limit does not apply to an issue which is implicitly part of 
an appeal which has been brought in time and which the Tribunal incorporates into 
the appeal as part of a "whole person" approach. See Decision No. 853/981 (1998), 
49 W.S.I.A.T.R. 119. The time limits also do not apply to reconsideration 
applications, although it is possible that timeliness may be a factor that future 
adjudicators will consider in light of the WSIA re-enforcement of the importance of 
finality. See Decision No. 332/95R (October 27, 1998). It has also been held that the 
Tribunal retains jurisdiction to hear applications for leave to appeal from Appeal 
Board decisions pursuant to the pre-1997 legislation, as long as the time limits in 
the WSIA have been met. See Decisions No. 254/98L (1998), 47 W.S.I.A.T.R. 123, and 
1454/98L (October 26, 1998). 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 99S 



Board Policy under the Workplace Safety and 
Insurance Act 

While the Tribunal previously considered Board policy in deciding appeals, the 
WSIA section 126(1) now expressly states that, if there is an applicable Board 
policy, the Appeals Tribunal shall apply it when making its decision. The section 
goes on to set out a process for the Board to identify policy and for the Tribunal to 
refer policy which the Tribunal concludes is inconsistent with, or not authorized by 
the Act, or does not apply to the case, to the Board. The referral is to be in writing 
and state the reasons for the Tribunal's conclusion. The Board then has 60 days to 
provide the parties with an opportunity to make submissions and issue a written 
direction. 

Section 126 raises a number of procedural issues and substantive ones. With 
respect to procedure, the Board has developed a large number of policy packages, 
which contain policies applicable to issues which frequently arise at the Tribunal. 
The Tribunal provides notice to the Board by sending the Board a copy of the 
appeal application. The Board then sends one or more policy packages. Given the 
newness of the process and the fact that policy packages are generic, some policies 
have mistakenly been identified. In an early case, the Board initially identified the 
horseplay and fighting policy as applicable to an appeal where a worker was shot 
by a co-worker. The Tribunal found that there was no fight and asked the Board for 
clarification. The Board agreed that the horseplay policy did not apply and that 
mistakes could be either informally clarified or formally referred under 
section 126(4). See Decision No. 55/98 (1998), 47 W.S.I.A.T.R. 80. 

Section 126(4) is generally seen as intended to resolve serious disagreements 
about what is required by the legislation. As an expert agency, the Appeals Tribunal 
is generally aware of applicable Board policy. Where the Tribunal and the parties 
agree about what policy is applicable, it is not necessary to ask the Board to notify 
the Tribunal if there is further policy. The Tribunal has the authority under the Act 
to apply applicable policy. See Decision No. 382/98 (1998), 46 W.S.I.A.T.R. 231. 

To date, there has been no formal referral under section 126(4) since it has been 
possible for the Tribunal either to identify the policies which are applicable or for 
the matter to be resolved by an informal clarification from the Board. In a few cases 
where it appeared that there was a possibility that a Board policy might be found 
to be inconsistent with the Act, the Tribunal has asked the Board and parties for 
submissions or additional information before determining whether a section 126(4) 
referral is necessary. See Decision No. 229/981 (April 9, 1998), where the employer 
argued that Board policy which provided that a NEL adjudicator could only 
consider a second NEL assessment report was inconsistent with section 42(5) of the 
pre-1997 Act. Similarly, Decision No. 1351/981 (November 30, 1998) requested Board 
clarification of the Board's pre-1998 chronic stress policy and Decisions No. 503/981 
(June 9, 1998), 504/981 (June 9, 1998), 505/981 (June 9, 1998) and 506/981 (June 9, 
1998) requested clarification of the Board's policy on employer interest. This 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



approach is in keeping with the view that the section 126(4) process is intended to 
resolve serious disputes. 

From a substantive perspective, the Tribunal will consider both the wording of 
the policy and its general intent and purpose when applying Board policy under 
section 126. This accords with general administrative law principles and the 
statutory requirement to decide cases on their merits and justice. Thus, in a 
commutation request where a worker with 100% pension had no possibility of 
vocational rehabilitation, Board policy was interpreted to provide an opportunity 
for commutation if the commutation would further rehabilitation in other ways. See 
Decision No. 1210/98 (1998), 48 W.S.I.A.T.R. 199. Board Operational Policy Manual 
Document No. 01-01-05 states that, if a Board policy does not reasonably apply to 
the facts of a case, decision-makers consider the Act's provisions. This policy was 
approved in Decision No. 1342/98 (1998), 48 W.S.I.A.T.R. 212, where the Panel 
commented that it quite sensibly provides an override provision in cases where 
generally sound policies do not reasonably apply to the facts and reflects the 
statutory requirement that decisions be made on the merits and justice of the case. 

The Tribunal has had to consider whether its earlier approach to particular 
Board policies can be reconciled with the requirements of section 126. For example, 
early Tribunal decisions on retroactive adjustments to employer NEER accounts 
tended to weigh any Board error against the employer's due diligence in pursuing 
cost relief. Recently, Decision No. 1085/98 (1998), 48 W.S.I.A.T.R. 175, noted that 
Board policy on retroactive adjustments recognizes that decisions must be made 
according to the merits and justice of the case and that facts not within Board 
policy are to be judged on this basis. Thus, criteria in pre-1998 Tribunal cases on 
retroactive adjustments may be relevant in considering the merits and justice of 
cases heard after 1998. However, section 126 requires a meaningful consideration of 
the nature and purpose of the Board policy as a whole in deciding the merits and 
justice of particular cases. The facts of an appeal must be sufficiently unique and 
fundamentally exceptional to justify an exception to the Board's general policy. See 
Decision No. 1759/98 (1998), 49 W.S.I.A.T.R. 154. 

The question of what constitutes Board "policy" for the purposes of section 126 
was considered in Decision No. 25/981 (1998), 46 W.S.I.A.T.R. 207. This case was 
subject to section 126 of the WSIA but arose under the pre-1997 Act which does not 
contain any specific provision on chronic stress (chronic stress is excluded from the 
WSIA). It was argued by the employer that the Board had an unwritten policy of 
not compensating chronic stress and that the requirement to apply Board policy 
now meant that chronic stress was also not compensable under the pre-1997 Act. 
However, the Board had identified Operational Policy Manual Document 
No. 03-03-03 on psychotraumatic disability as applicable, and the Panel found that 
this policy was broad enough to cover the facts of the case. While this was 
sufficient for the purposes of the appeal, the Panel also noted that "policy" was not 
defined in the Act. The Panel commented that, while the Board's Operational Policy 
Manual was necessary to assist Board adjudicators and was the primary tool by 
which the public could find out about the Board's position on various issues, there 
was nothing in section 126 which would prevent the Board from providing the 
Tribunal with a written statement of its policy from a different source. This 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1998 



decision was subsequently subject to a reconsideration request which had not been 
decided at the end of 1998. And see Decisions No. 183/98 (April 6, 1998) and 729/98 
(1998) / 47W.S.I.A.T.R. 175. 

The Tribunal subsequently received two different statements from the Board of 
its pre-1998 chronic stress policy, and the most recent statement of policy was the 
subject of a challenge under section 15 of the Charter of Rights. Decision No. 1351/981 
(November 30, 1998) deferred the Charter issue pending resolution of the policy 
issue and asked the Board for a copy of its pre-1998 policy, together with 
information about its formal approval by the Board. The Panel noted that, 
depending on the Board's response, it might be necessary to decide what was 
"policy" for the purposes of section 126. The Tribunal had not received a response 
by the end of this reporting period. 



Right to Sue Applications 



The workplace safety and insurance scheme and earlier workers' compensation 
scheme are based on an "historic trade-off" in which workers gave up their right to 
sue employers in exchange for a system of statutory no-fault benefits. Under the 
WSIA and pre-1997 legislation, the Tribunal has the exclusive jurisdiction to 
determine whether an injured worker's right to sue his employer in the courts has 
been removed. Right to sue applications are often complicated by the overlap of 
other statutory and common law rights. 

Decision No. 1059/96 (1998), 46 W.S.I. A.T.R. 55, considered the retroactivity of 
amendments by the Insurance Statute Law Amendment Act, 1993, which allowed 
insurers paying statutory accident benefits in motor vehicle accidents to apply to 
the Tribunal for a determination of a worker's right to benefits. Decision No. 670/97 
(1998), 45 W.S.I. A.T.R. 110, held that the right to sue for wrongful dismissal was 
not removed by the pre-1997 Act since damages for wrongful dismissal are not 
comparable to any right under the pre-1997 Act, apart from the re-employment 
provisions. This decision also considered a worker's claim to sue for benefits under 
his employer's health plan instead of making a claim for compensation. Decision 
No. 1176/97 (1998), 46 W.S.I. A.T.R. 127, considered a worker's right to sue for a 
stress disability arising from the aggressive and unrestrained behaviour of an 
alcoholic co-worker and from a sexual assault committed by another co-worker. 
The employer did not initially believe the sexual assault, although the co-worker 
was subsequently convicted. The case was governed by the pre-1997 Act since it 
was heard before 1998, and the Panel found that the worker's right to sue for 
damages due to stress arising from the actions of her co-workers had been 
removed, but that she could sue for wrongful dismissal. 

Non-economic Loss Awards 

Non-economic loss (NEL) awards were first introduced as part of the dual 
award system in the pre-1997 Act as a means for compensating pain, suffering and 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



other non-economic losses resulting from a workplace injury. At the same time, 
future economic loss (FEL) awards were created to compensate for future economic 
loss flowing from the compensable injury. Thus, a NEL award was found not to be 
intended to cover possible recurrences which would have an impact on a worker's 
earning ability. A NEL award provides compensation for non-economic losses only. 
See Decision No. 1177/97 (1998), 47 W.S.I.A.T.R. 19. 

While NEL awards are continued by the WSIA, the detailed pre-1997 statutory 
procedures, which included a mandatory NEL medical assessment, have been 
repealed by the WSIA and replaced by the simpler process in WSIA section 47. 
However, the Board has adopted a policy that redetermination requests made 
before January 1, 1998, under the pre-1997 Act are to be adjudicated under the 
criteria in section 42(21) of the pre-1997 Act. The Tribunal has held that this is the 
correct approach and not inconsistent with the transitional provisions of the WSIA. 
Thus, workers are entitled to a redetermination where there has been a significant 
deterioration which was not anticipated at the most recent NEL medical 
assessment. See Decision No. 782/98 (1998), 47 W.S.I.A.T.R. 191. And see Decision 
No. 229/981 (April 9, 1998), discussed above at page 5. 

In a case governed by the pre-1997 Act, it was held that the Board does not 
have the power under that Act to void a NEL assessment which was performed by 
a roster physician although the Board could arrange for another assessment to be 
done, providing the statutory criteria for a second NEL assessment were followed. 
See Decision No. 1349/97 (1998), 46 W.S.I.A.T.R. 169. However, the Board may 
disregard a NEL assessor's report and rely on the other medical evidence where the 
assessment is not consistent with the medical findings or the existing medical 
record (Decision No. 1171/98 (1998), 47 W.S.I.A.T.R. 254). Decision No. 744/98 (1998), 
49 W.S.I.A.T.R. 114, asked the Board for information on discounting a NEL 
assessment for a psychiatric impairment where the worker already has a NEL 
award for an organic impairment. The Tribunal increased the NEL award based on 
the Board's advice that it only discounts a NEL assessment for psychological 
impairment to avoid duplication for an organic head injury or where the assessor 
intended the assessment to be a global one. 



Employer Issues 



In 1998, the Tribunal heard a number of appeals involving issues of specific 
interest to employers, such as classification matters, SIEF relief and other relief 
from costs. See Decisions No. 393/96 (1998), 48 W.S.I.A.T.R. 9, 887/96 (1998), 48 
W.S.I.A.T.R. 20, 955/96 (1998), 48 W.S.I.A.T.R. 35, 1710/97 (1998), 48 W.S.I.A.T.R. 99, 
1131/98 (1998), 47 W.S.I.A.T.R. 233, and 2568/95 (1998), 48 W.S.I.A.T.R. 271. Two 
areas which are likely of particular interest are the Tribunal's cases on experience 
rating and its employer interest cases. 

NEER and CAD-7 are experience rating programs which are intended to shift 
some of the burden of a rate group's cost to employers with above average claim 
costs. NEER currently includes all rate groups in Schedule 1 except the 11 rate 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



groups in the construction industry which are covered by CAD-7. For NEER, the 
Board reviews the claim costs for an employer for a given accident year in each of 
the three following years and compares these to the assessment rate for the rate 
group. The CAD-7 formula is somewhat different. Decision No. 929/98 (1998), 
48 W.S.I.A.T.R. 157, noted that when the three-year NEER window closes, the 
Board adjusts costs associated with the claim to reflect past and projected future 
costs based on a formula involving claims types. The Tribunal upheld the Board's 
practice of treating $1 FEL sustainability awards as FEL awards in assigning claim 
types. Claim types are determined when benefits are awarded, not when they are 
paid. A sustainability award is not just a matter of administrative convenience, but 
indicates a likelihood of future benefits. While it may turn out that there are no 
additional benefits, the Board must base its calculations on the projected future 
costs from an actuarial point of view. 

Board policy on retroactive NEER adjustment has changed over the years. Since 
January 1996, the policy provides for an unlimited time for adjustment if there is a 
change in classification, a court judgment or a reversal of entitlement to a claim. 
Otherwise, there is a limited time for adjustments due to Board error. Decision 
No. 1565/97 (1998), 45 W.S.I.A.T.R. 163, an appeal governed by the pre-1997 Act, 
considered Decision No. 591/94 (1995), 33 W.C.A.T.R. 157, one of the Tribunal's early 
cases in this area, which based entitlement to retroactive adjustment on criteria 
such as due diligence and systemic delay. This reflected an interpretation of 
"exceptional circumstances," the test then used by the Board. While current Board 
policy does not explicitly consider due diligence or systemic delay, Decision No. 
1565/97 decided that these criteria can be factored in when considering the merits 
and justice of a particular appeal. The definition of "Board error" is broad enough 
to include systemic delay. Consideration of the real merits and justice requires not 
just consideration of the employer's case, but also the predictability and 
consistency in application of the NEER policy. By this standard, the criteria in 
Decision No. 591/94 are consistent with current Board policy. And see Decisions 
No. 1759/98 (1998), 49 W.S.I.A.T.R. 154, and 1085/98 (1998), 48 W.S.I.A.T.R. 175, 
discussed above at page 6, and Decision No. 409/98 (1998), 46 W.S.I.A.T.R. 255, 
which found "Board error" required a distinction between delay due to the 
complete failure to address an employer's concerns and a decision which is 
overturned on appeal after closure of the three-year window. 

NEER policy distinguishes between active and inactive claims, based on 
whether a claim draws any benefits in a calendar year. Considering that there was 
no clear understanding of active /inactive status in Board documents, the merits 
and justice of the particular case and the impact on the individual employer, it was 
found to be unreasonable to render a claim active in the year in which the decision 
was made, rather than the year for which benefits were paid. See Decision No. 
1698/97 (1998), 48 W.S.I.A.T.R. 93. 

With respect to employer interest, pre-1998 Tribunal cases found that 
employers may be entitled to interest on overpayments in the absence of Board 
policy, since there is still a discretion under the Act to pay employer interest. 
Interest is not a penalty to the Board, but rather recognition of the time value of 
money. See Decision No. 1521/97 (1998), 47 W.S.I.A.T.R. 57. Early in 1998, Tribunal 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



decisions noted that the Board recently adopted an employer interest policy and 
referred interest questions back to the Board to determine under its new policy. See 
Decisions No. 1700/971 (February 2, 1998) and 1624/971 (April 30, 1998). Decision 
No. 585/981 (May 6, 1998) asked the Board for clarification of its interest policy. The 
Board provided information that prior to January 1, 1997, the Board had a policy 
not to pay interest on experience rating adjustments, but that beginning January 1, 
1997, it adopted a policy of paying interest to employers when a credit balance was 
created. There was also a Board administrative minute stating that, effective 
January 1, 1997, debit or credit interest would be applied to retroactive adjustments 
and that the Board had discretion to adjust the start date. Decisions No. 503/981 
(June 9, 1998), 504/981 (June 9, 1998), 505/981 (June 9, 1998) and 506/981 (June 9, 
1998) requested clarification on the scope of the policy and the considerations for 
exercising discretion regarding the start date. Since the employer distinguished 
between a policy statement that interest is not payable and the absence of any 
policy, the Tribunal also requested a copy of the Board policy against paying 
interest on experience rating adjustments. And see Decision No. 1037/97 (1998), 48 
W.S.IA.T.R. 79, which accepted that the Board's policy only provided for interest 
on changes from revised payroll, but found that, in the absence of policy, there was 
still a general obligation to compensate for the time value of money. 



Occupational Disease 



Occupational disease cases raise some of the most medically complicated issues 
as they involve workplace exposure to harmful processes or substances. The 
legislative structure and the Tribunal's interpretation of the law remain the same. 
Occupational diseases are compensable if they fall under the statutory provisions 
governing "occupational disease" or "disablement." In disablement cases, the 
Tribunal examines the evidence relating to an individual worker to see if it 
supports a causal relationship, as well as general medical and scientific evidence. 
The Board has developed policies for a number of occupational diseases, and the 
Tribunal also applies these in reaching its conclusions. 

In cases where there is no generally accepted medical diagnosis, the Tribunal 
must consider all of the evidence in deciding whether the workplace was a 
significant contributing factor to the worker's condition. Decision No. 800/95 (1998), 
46 W.S.I.A.T.R. 1, found that, while there was a temporal connection between the 
workplace exposure and development of the worker's symptoms of multiple 
chemical sensitivity, the worker had also suffered a viral infection and had 
undergone multiple bowel surgeries and suffered a reaction to an anaesthetic. The 
temporal connection was actually to these surgeries rather than to the workplace. 
However, in Decision No. 899/97 (1998), 48 W.S.I.A.T.R. 58, the specific evidence 
about the worker supported the finding that the workplace made a significant 
contribution to the worker's condition. 

Other interesting occupational disease cases include Decision No. 955/95 (1998), 
46 W.S.I.A.T.R. 41, which considered a widow's claim for benefits for her husband's 
death from Legionnaire's disease, and Decisions No. 585/96 (1998), 45 W.S.I.A.T.R. 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



49, and 651/96 (1998), 45 W.S.I.A.T.R. 70, which considered claims for bilateral 
Dupuytren's contracture in different work settings. Decision No. 397/96 (1998), 44 
W.S.I.A.T.R. 76, considered the effect of second-hand workplace smoke on a 
pre-existing bronchitis and asthma. 

Miscellaneous 

The interaction between the pre-1997 Act and the Employment Standards Act was 
considered in Decision No. 1454/98L (October 26, 1998). Both statutes address 
relations between workers and employers and should be interpreted in a coherent 
manner. Since an Employment Standards Officer had concluded that the employer 
must be deemed to have agreed to pay the worker minimum wage, this minimum 
wage should be applied for the purpose of calculating the worker's benefits under 
the pre-1997 Act. 

The Tribunal also had occasion to consider entitlement to dependant's benefits 
in situations involving marital breakdown. Decision No. 408/98 (1998), 46 
W.S.I.A.T.R. 245, found that a former wife would be entitled to dependant's 
benefits under the Act where she was in receipt of child support pursuant to a 
separation agreement. However, Decision No. 1119/98 (1998), 49 W.S.I.A.T.R. 125, 
rejected a request for dependant's benefits by a separated widow where she argued 
that the separation agreement, which provided that no spousal support was 
payable, would have been set aside by a Court. Since Board policy does not cover 
this situation, the Tribunal considered Supreme Court of Canada cases on 
settlement agreements and concluded that the settlement would not have been set 
aside by a Court. Decision No. 652/98 (1998), 47 W.S.I.A.T.R. 168, considered when a 
request for commutation of a 10% or less pension should be deemed to be made in 
light of the Board's policy that it was not the worker's responsibility to request a 
commutation in such circumstances. That decision also reviewed use of the 4% CPI 
table for calculating commutations requested as of January 1, 1995, and the 6% 
Friedland tables used for earlier commutations. 

At the time of the last Annual Report, the question of whether the 
re-employment provisions in the pre-1997 Act applied to federal employers was 
still before the Courts. In Canada Post Corp. v. Smith (1998), 40 O.R. (3d) 97, the 
Ontario Court of Appeal upheld the Tribunal's decision that the re-employment 
provisions were incorporated into the Government Employees Compensation Act and 
applied to federal employers. Leave to appeal this decision was refused by the 
Supreme Court of Canada on December 10, 1998. Decision No. 1161/96 (1998), 
47 W.S.I.A.T.R. 15, found that a penalty against a federal employer should be 
waived since the employer had received legal advice regarding the applicability of 
the re-employment provisions prior to these court decisions and since the breach 
was not a blatant one. 

Other cases of note included: Decision No. 1342/98 (1998), 48 W.S.I.A.T.R. 212, 
which considered Board policy and how it should apply to an off-duty police 
officer who was shot and killed by a man whom he had previously arrested in the 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



course of his duties; Decision No. 1114/97 (1998), 48 W.S.I. A.T.R. 84, which decided 
the appropriate earnings basis for a 15-year-old who suffered massive trauma from 
being caught in a cement mixer at a summer job; and Decisions No. 870/95 (1998), 
45 W.S.I.A.T.R. 24, 950/96 (1998), 45 W.S.I.A.T.R. 87, 1177/97 (1998), 47 W.S.I.A.T.R. 
19, 86/98 (August 17, 1998), 922/98 (1998), 47 W.S.I.A.T.R. 215, and 943/98 (1998), 
48 W.S.I.A.T.R. 164, on future economic loss (FEL) benefits. 



APPLICATIONS FOR JUDICIAL REVIEW AND 
OTHER COURT MATTERS 

In 1998, there were no applications for judicial review heard by the Divisional 
Court, with respect to Tribunal decisions. 

A motion for leave to appeal the decision of the Divisional Court upholding 
Decision 716/911 was heard on January 29, 1998, and dismissed by judgment dated 
May 1, 1998. A subsequent application for leave to appeal to the Supreme Court of 
Canada was dismissed by judgment dated December 10, 1998. 

An application for leave to appeal a decision of the Ontario Court (General 
Division) made on December 23, 1997, by expedited process, was dismissed on 
April 21, 1998. This application for judicial review had been from a decision of the 
Tribunal Chair which declined to expedite scheduling of an appeal, in priority to 
appeals received earlier, in order to allow the appeal to reach a Panel prior to the 
effective date of the Workplace Safety and Insurance Act, 1997, on January 1, 1998. 

An application for judicial review of Decision No. 830/96 was withdrawn on 
June 18, 1998. 



Judicial Reviews Outstanding 



At the end of the review period applications for judicial review remained 
outstanding with respect to the following decisions: 



Decision No. 702/97 
Decision No. 647/95 
Decision No. 1435/97 
Decision No. 1410/98. 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



OMBUDSMAN COMPLAINTS AND OTHER 
ACTIVITY 

The number of case-related Ombudsman complaints has been declining over 
the last few years. In 1997, the Tribunal was notified of 37 case-related complaints. 
In 1998, the Tribunal received 16 notifications. Since an Ombudsman complaint can 
relate to a Tribunal decision made at any time, notifications received in 1998 did 
not necessarily deal with recent cases. 

The Ombudsman's Office thoroughly investigates complaints and considers the 
reasonableness of the Tribunal's analysis. Most investigations result in the 
Ombudsman concluding that there is no reason to question the Tribunal's decision, 
although a few have resulted in the Tribunal initiating a reconsideration process. 
One Ombudsman letter was received during 1998 which prompted the Tribunal to 
undertake such a process. The two outstanding reconsiderations noted in the 1997 
Annual Report which arose from earlier Ombudsman investigations were closed in 
1998. The reconsiderations were allowed on the merits. 

In January 1998, the Tribunal was one of a number of agencies to receive a 
survey and questionnaire from the Ombudsman concerning the timeliness of its 
appeal process. The Tribunal provided detailed responses, including information 
about the increase in incoming appeals in 1998, the additional complexities 
involved in adjudicating under four different Acts, statistical information on 
median times at various stages in the appeals process, budget and staffing issues, 
and administrative and procedural changes to improve turnaround time and 
monitor results. Much of this information is discussed elsewhere in this Report. The 
Chair of the Tribunal noted that the introduction of the six-month limitation period 
was expected to generate appeals above the historic 50% rate of appeal from the 
Board. A key to the solution was additional skilled adjudicators with compensation 
or workplace insurance experience. The ultimate solution would be a reduction in 
the number of appeals coming to the Tribunal. The Chair of the Tribunal also 
undertook to continue to take whatever steps appeared necessary to process 
appeals in a timely way, and to provide the Ombudsman's Office with a report in 
six months' and one year's time. 

While the Ombudsman recognized the Tribunal's significant efforts to deal 
effectively with its increasing workload, she concluded that the time taken to 
process appeals was unreasonable and recommended that the Tribunal report back 
in six months' and one year's time. She also recommended that the Tribunal take 
all necessary steps, including requesting additional resources, to ensure that it is 
able to process appeals in a timely manner, and that the Ministry of Labour take all 
necessary steps to ensure the Tribunal has adequate resources. 

In September 1998, the Tribunal provided the Ombudsman with a six-month 
update. At the end of the reporting period, the Tribunal was complying with the 
Ombudsman's request that the updated information be put in the same format as 
the original survey. 



Tribunal 




Report 



VICE-CHAIRS, MEMBERS AND STAFF 

Lists of the Vice-Chairs and Members, senior staff and Medical Counsellors 
who were active at the end of the reporting period, as well as a list of 1998 
reappointments and newly appointed Vice-Chairs and Members, can be found in 
Appendix A. 



OFFICE OF COUNSEL TO THE CHAIR 

The Office of Counsel to the Chair (OCC) has been in existence since the 
creation of the Tribunal. It is a legal department separate from the Tribunal 
Counsel Office and is not involved in the hearing process or in making submissions 
in cases. The draft review process, which has been described in prior Annual 
Reports, is the responsibility of Counsel to the Chair and the four Associate 
Counsel to the Chair. 

Other OCC responsibilities include providing advice to the Chair and Chair's 
Office, training and professional development, current awareness and research, 
administering the reconsideration process, responding to Freedom of Information and 
Protection of Privacy Act issues and complaints, and assisting with Ombudsman 
matters. Given the enactment of the Workplace Safety and Insurance Act and the 
appointment of several new Tribunal decision-makers, there was an increased 
emphasis on training during 1998. 



TRIBUNAL COUNSEL OFFICE 

The Tribunal Counsel Office (TCO) consists of seven groups, each reporting to 
the General Counsel: Intake, the Case Analyst Group, the Medical Liaison Office, 
the Early Resolution Group, the Pre-Hearing Group, the Post Hearing Group and 
the Lawyers. 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 993 



Intake 

The intake department handles all incoming appeal applications and the 
public's questions about appeals and about the appeal process. 

The intake clerks review appeals for jurisdictional issues and to ensure the time 
limits of the new Act are met, obtain a completed appeal application form, and 
place appeals on the Tribunal's waiting list as necessary. In addition, files that are 
not ready to proceed or for which a completed appeal application form is not 
submitted (including "letters of intent" received before June 30, 1998, to preserve 
appeal rights under the time limits of the Act) are placed in inactive status. When 
the Tribunal is in a position to process an appeal, the Board file is ordered and the 
appeal is made "TCO ready," that is ready for assignment to a case analyst. 

The intake department is also primarily responsible for the Tribunal's "special 
section" cases. In 1998, the special section cases included cases about access to the 
worker's file, cases on the right to maintain civil actions for damages and, for the 
first time, applications for extension of time made under the new Act. 

A few types of appeal or application are not placed on the Tribunal's waiting 
list. For employer access appeals, appeals about the right to sue, appeals in which 
both parties request mediation and written appeals, the file is ordered at once and 
the appeal is assigned to a case worker as quickly as resources allow. 



Case Analyst Group 



The case analyst group is responsible for the pre-scheduling preparation of the 
file material. This was a year of significant change in this group. A number of 
experimental approaches continued to be developed in an attempt to increase the 
flow-through of appeals. 

In 1998, there were four different models used for the preparation of file 
materials, depending on the type of appeal: 

1. direct flow (blitz): the file is not read by an analyst prior to scheduling. The 
analyst who prepares the Case Record reviews only the ARO decision and 
the Board access memo and, if necessary, recent medical reports dated after 
the access memo. The file is vetted only for obvious jurisdictional issues, 
employer notice issues and access issues. 

2. information request (IR): the preparation of the Case Record is the same as 
in the blitz model. However, the Case Record is sent to the appellant with 
an information request which must be completed before the case will be 
sent to scheduling. The case is retained by the case analyst until the IR is 
returned complete. If the form is not returned, files are made inactive. 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



3. traditional stream: the case analyst reads the file and deals with all issues 
before scheduling and before the transfer of the file to the pre-hearing legal 
worker. 

4. written cases /employer appeals: many employer appeals involve a request 
for a written hearing, and the processing requirements for employer 
appeals and for written appeals are different. A specialized group of case 
analysts handles all written cases, whether involving a worker or employer 
appellant, and all employer appeals. These analysts read the file, prepare 
the Case Record, send out IR forms, and also carry the file through the 
written hearing process if so scheduled. 

The use of the information request form remained a pilot project in 1998, and 
the form was revised twice as a result of feedback received about the usefulness of 
various questions included in the form and proposals for the inclusion of 
additional questions. 

Over the course of the year, the number of cases in the IR steam was increased 
to the point that essentially all appeals made by represented workers were sent IR 
forms, except for a limited number of the most complex cases, that continued 
through the traditional process for specialized preparation. Initial preliminary 
assessments did suggest that the use of the form allowed staff to focus on 
processing problems more efficiently, reduced adjournments, and allowed the most 
hearing-ready appeals to proceed ahead of those requiring additional preparation. 

For unrepresented workers, simple cases were prepared in the direct flow 
model, more complex cases in the traditional model. The Case Record for all ER 
cases was prepared in the direct flow model. The information form was not sent 
out to unrepresented workers or to appellants who participated in mediation. 



Early Resolution Stream 



In 1998, the Tribunal started to offer mediation on all appeals where there were 
two participating parties. If both parties consent, a meeting is scheduled with an 
Early Resolution Officer to determine if a settlement can be found. If a settlement is 
reached to which all parties and the ERO consent, the proposed settlement is sent 
to a Vice-Chair as a recommended disposition of the case. Recommendation may be 
on limited matters, i.e., the issue agenda or an agreed statement of facts, or that the 
appeal may proceed by written process, or may be on the disposition of the case on 
the merits. 



Prehearing Legal Workers 



When the Case Record is complete, the case is sent to scheduling, and, for oral 
appeals, the file is transferred either to a pre-hearing legal worker or to a lawyer, 
for carriage through the hearing process. Over 95% of cases are handled by legal 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



workers. These legal workers deal with matters that arise pre-hearing, and provide 
assistance to the parties if there are questions respecting the preparation of the 
cases. 



Post-hearing Legal Workers 



When a panel identifies that additional information is required after a hearing, 
a request is made to the post-hearing legal workers, who co-ordinate this 
continuing investigation. 



Lawyers 



Lawyers continue to handle a small number of the most complex cases, 
involving novel legal issues or issues which have been identified as involving a 
significant Tribunal interest. The work of TCO lawyers also involves the provision 
of technical advice to the pre-hearing group, early resolution stream and case 
analysts. One TCO lawyer is assigned on a full-time basis as group leader for the 
Early Resolution Team. Another TCO lawyer has taken responsibility for advising 
on all NEL, FEL, LOE, reinstatement and employer assessment and classification 
issues, and supervision of the pre-hearing legal workers on those issues, and two 
others have undertaken a similar role on files involving stress, chronic pain, 
occupational disease, hearing loss and psychiatric issues. The fifth TCO lawyer 
advises the case analyst group. 

TCO lawyers also handled applications for judicial review and other 
court-related matters. 

Medical Liaison Office 

The Tribunal has an interest in ensuring that Panels and Vice-Chairs have 
sufficient and appropriate medical evidence on which to base decisions. With the 
exception of mediated cases, all Case Records are reviewed by the Medical Liaison 
Office for the purpose of identifying those cases in which the medical issues may 
be problematic, complex or novel to the Tribunal. Cases selected from this process 
are referred to the Tribunal's Medical Counsellors to check that the medical 
assessment of the worker's injury is complete and that the record contains opinions 
from appropriate experts when required, and to attempt to ensure that questions or 
concerns about the medical issues that may need clarification for the Hearing Panel 
or Vice-Chair are identified. 

At the pre-hearing stage, Counsellors may recommend getting more 
information from the patient's treating physician(s). In addition, Counsellors may 
recommend obtaining a Medical Assessor's opinion if the diagnosis of the worker's 
condition is unclear, or if there is a complex medical problem that needs 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



explanation, or if there is an obvious difference of opinion between qualified 
experts. 

At the post-hearing stage, Hearing Panels or Vice-Chairs requesting further 
medical investigation may request the assistance of the Medical Liaison Office in 
preparing specific questions that may be helpful in resolving medical issues that 
they find troubling. Counsellors assist the Medical Liaison Office in providing 
additional questions for the consideration of the Panel or Vice-Chair and 
recommending the most suitable assessor. 

The Tribunal's relationship with the medical community is regarded as a 
particularly high Tribunal priority. Ultimately, the quality of the Tribunal's 
decisions on medical issues is dependent on that relationship. The Medical Liaison 
Office co-ordinates and oversees all of the Tribunal's interactions with the Medical 
Community. That relationship remains positive and is evidenced by the Tribunal's 
continuing ability to readily enlist leading members of the profession to its service. 

Provision of information 

The Medical Liaison Office continues to place in the WSIAT Library, medical 
articles, discussion papers and transcripts of WSIAT experts on medical /scientific 
issues that contain information that may be useful in future appeals. All transcripts 
are anonymized and literature cited in these transcripts is placed in the Tribunal's 
vertical file. This collection of medical information specific to issues that arise in 
the workers' compensation field is unique within the Ontario WSIB system and is 
accessible to the public. Discussion papers on general medical topics that 
frequently arise in compensation matters are prepared by the Tribunal's Medical 
Counsellors or Medical Assessors and are also available in the Library. 

Database 

In 1993, the Medical Liaison Office began to use a database designed by the 
Chief Information Officer to help track the nature of medical issues at the Tribunal, 
the type of investigations conducted by the Medical Liaison Office, decisions using 
this evidence, and which Medical Assessors provided expert evidence to the 
Tribunal. The database can be searched by WSIAT number, decision number, 
medical issue, the Medical Assessor and Counsellor, and will help the Medical 
Liaison Office analyse the nature and extent of its workload and of the medical 
investigations conducted by the Tribunal. It is also expected that the database will 
provide an easily accessible way to determine what information already exists 
within the Tribunal, that may be useful in appeals with similar medical fact 
situations. 

Medical Review 

In addition to case specific medical evidence issues, the Medical Liaison Office 
co-ordinates the Tribunal's audit. The audit is internal and post-decision. Its 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



purpose is to obtain, from the Medical Counsellors, a medical professional's 
perspective on the manner in which medical facts or theory are treated or recorded 
in Tribunal decisions. The audit permits the Tribunal to evaluate its processes and 
practices as they relate to medical issues and medical evidence. The audit 
highlights areas to further educate Tribunal members and staff through medical 
education initiatives. 

MLO and the Medical Component 

Medical Assessors 

During 1998, the Tribunal's powers of medical investigation were as set out in 
the new Workplace Safety and Insurance Act under section 134. The Act allows for the 
health professionals to assist in determining matters of fact. It does not explicitly or 
implicitly intend any decision-making capacity. The Appeals Tribunal has the 
power to initiate medical investigations if it believes it necessary in order to 
determine any medical question at issue on an appeal. Such investigations, 
including further examination of a worker, may be referred to health professionals 
on an authorized list. This authorized list became the Tribunal's "roster." The 
requirement for Order-in-Council approval to the roster was eliminated. 

It is the health professionals on this roster to whom the Tribunal may send a 
worker for further medical examination. The Tribunal has also adopted the label 
"Medical Assessors" for the health professionals on its 134 roster. This label reflects 
generally what the Tribunal understands their intended role to be, and serves to 
distinguish this set of health professionals from the Tribunal's "Medical 
Counsellors." 

Although the Act introduced substantial changes, most of which came into 
effect January 1, 1998, the amendments are expected to impact only incidentally on 
the role of the Tribunal's Medical Assessors and Medical Counsellors. Although 
Tribunal Assessors will no longer be appointed by Order-in-Council, and the 
statutory requirement for consultation prior to their appointment has been 
removed, their role in assisting in medical investigations is retained. Further, the 
revised sections of the new Act authorize the Tribunal to use any health 
professional as an assessor. 

The Appointment Process of Medical Assessors 

The members of the Advisory Group and the Medical Counsellors are invited 
to suggest the names of appropriate candidates. The Medical Counsellors consult 
with other colleagues within their profession. Names suggested by the Advisory 
Group or which come to the Tribunal Chair's attention from other sources are 
reviewed with the Medical Counsellors. 

The members of the Tribunal's Advisory Group were utilised as the 
"representatives of employers and workers" for this purpose. The Tribunal's 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



Advisory Group is composed of organisations representative of workers and 
employers. The Tribunal's Medical Counsellors were considered to be the 
"representatives of physicians" due to their seniority and eminence within the 
medical profession. 

A tentative list of potential candidates was developed in this fashion. The 
health professionals on that list were then approached to see if they would be 
interested in allowing their names to be entered in the approval process. The help 
of the Medical Counsellors was often enlisted in this recruitment process. 

Health professionals identified as candidates by the Appeals Tribunal for 
possible appointment to its roster of authorized health professionals, were asked to 
allow their names to be entered into the appointment process. Nominees who were 
interested in being appointed and who have supplied a professional resume, will 
have their names circulated to the members of the Tribunal's Advisory Group for 
their views. 

The views obtained from the Medical Counsellors and the Advisory Group are 
considered by the Tribunal when determining whether or not to proceed with 
recommending an appointment to the roster as an Assessor. Appointments are for a 
three-year term, subject to renewal, and approved by the Appeals Tribunal process 
as described. 

Services Provided by Medical Assessors 

Medical Assessors on the roster are asked to assist the Tribunal in a number of 
possible ways. Typically, they are asked to examine a worker, study the medical 
reports of other practitioners, and give their opinion on some specific medical 
question. Health professionals specializing in a particular field might be requested 
to assist in educating the Tribunal or one of its Hearing Panels or Vice-Chairs in a 
general way about some medical theory or procedure. The Medical Assessor may 
be asked for an opinion as to the validity of a particular medical theory which a 
Hearing Panel or Vice-Chair has been asked to accept, or to comment on the 
representative nature, quality or relevancy of a selection of medical literature that 
the Tribunal may have been asked to consider. 

The opinions are normally sought in the form of written reports containing the 
history, observations, and test results on which the opinion is based. Copies of the 
reports are made available to the worker, employer and the WSIB. References will 
be typically made to the report in the Tribunal's reasons for its decisions. 

It is expected that a written report will normally be sufficient, and attendance 
at the hearing of the case in question will not be required. On occasion, however, it 
is apparent that a Hearing Panel or Vice-Chair must have the opportunity to 
question the health professional for purposes of clarification and explanation of the 
opinion, if it is to be able to decide the medical issue with confidence. In those 
cases, the health professional will be asked to appear at the hearings and give oral 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



evidence. Both the participating parties, as well as the Hearing Panel or Vice-Chair, 
have the opportunity to discuss the opinion with the health professional. 

Where the health professional is asked to attend the hearing, every effort is be 
made to minimize the inconvenience and the impact of the practitioner's usual 
schedule. Special compensation for attendance at hearings takes into account the 
schedule disruption associated with such attendance. The tariff arrangements are 
set according to the fact that appearances at Appeals Tribunal hearings impose an 
extra burden on most health professionals by reason of their unfamiliarity with the 
process, and the fact that some preparation time will usually be required. 

Medical Counsellors 

The Tribunal's Medical Counsellors are a group of senior specialists who have 
accepted part-time employment with the Tribunal and serve as wise counsel to the 
Tribunal in the medical area generally. They are an integral part of the Medical 
Liaison Office. The Medical Counsellors' Chair is Dr. Ross Fleming. (A list of the 
Medical Counsellors can be found in Appendix A). 

Services Provided by Medical Counsellors 

Cases selected by the Medical Liaison Office are referred to the Tribunal's 
Medical Counsellors to ensure that the medical assessment of the worker's injury is 
complete, that the record contains opinions from appropriate experts, when 
required, and that questions or concerns about the medical issues that may need 
clarification for the Hearing Panel or Vice-Chair are identified. Unlike the Medical 
Assessors, they do not examine workers nor do they give evidence or otherwise 
communicate with Hearing Panels or Vice-Chairs in individual cases. 

Upon review of a case, the Counsellor advises the Medical Liaison Office as to 
whether or not he thinks the evidence is sufficient and, if it is not, what other 
avenues of investigation ought, in his view, to be explored. If the Counsellor 
recommends further investigation, the Medical Liaison Office then arranges for the 
necessary investigation to be carried out. 

Counsellors continue to monitor the sufficiency and quality of the Tribunal's 
Medical Assessor roster. Appointments of some of the leading health professionals 
in several highly specialized areas of medicine are initiated by Counsellor 
recommendation to ensure that the Tribunal is aware of emerging generic issues 
from a health professional's perspective. Counsellors advise the Tribunal Chair, 
generally, with respect to medical profession protocol including, most importantly, 
advice on the question of appropriate fees for the Medical Assessors. 

At the case preparation stage, Medical Counsellors advise Tribunal counsel 
concerning the sufficiency of the medical evidence, particularly cases that are 
controversial from an administrative law perspective. Through experience, the 
Tribunal is satisfied that this does not interfere with the autonomy and 
independence of the Hearing Panels or Vice-Chairs. Support for the procedure is 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



virtually unanimous, and all concerned find it impossible to imagine how, given its 
operational circumstances, the Tribunal could have managed without this 
procedure. 

Through an ongoing series of lectures, the Counsellors have helped to raise the 
level of the Tribunal's general medical literacy. 

Counsellors participate in an internal audit process to obtain from a medical 
professional's perspective, the manner in which medical fact or theory is treated 
and recorded in Tribunal decisions. 

The role of the Medical Counsellor continues to develop and is subject to 
ongoing review. 



INFORMATION DEPARTMENT 



Library Services 



The Library provides information services to Tribunal staff and Members as 
well as workers, employers and representatives. The collection, which focuses on 
legal and medical aspects of workplace safety and insurance, includes Tribunal 
decisions, law reports, books, periodicals, government documents, conference 
proceedings, WSIB policy documents, book chapters and journal articles. A 
database of Tribunal decision summaries allows library users to research WSIAT 
decisions. 

In the latter part of 1998, plans were made for the merging of the Ontario 
Labour Relations Board and Pay Equity Commission library collections with that of 
the WSIAT Library. The main objective of phase one of the merger plan was to 
estimate space needs for the combined collection. A series of meetings between 
staff of the three libraries determined that there was a good deal of overlap, 
especially within the law reports and in the subject area of administrative law. 
Additional space needs were minimized by the elimination of duplicate titles and 
non-essential items, and the use of higher shelving units. New shelving to house 
the larger combined collection was ordered. 

In anticipation of the merger, a Library Technician III was hired to help deal 
with an increase in library usage. One librarian from the Ontario Labour Relations 
Board was expected to join the staff of the new library. 

As part of the effort to control space requirements, the Library's hard copy 
collection of unreported Tribunal decisions was eliminated. A user-friendly 
computer interface was designed to allow researchers to call up the full text of any 
Tribunal decision. Users can now research decisions and then view or print the 



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Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



full-text from the two public access computers. Reaction to this change has been 
largely positive. 

The Library is responsible for the Tribunal web site (www.wsiat.on.ca). In 1998, 
the web site was largely rewritten because of major changes brought about by the 
Workplace Safety and Insurance Act which came into force on January 1. 

library Statistics 

Additions to the book and government document collections: 143 

Items circulated: 501 

Interlibrary loan and document delivery: 259 

Reference requests: 1,077 

Directional requests: 1,553 

Publications 

On-line Databases 

Tribunal decisions were made available on the Quicklaw database service 
operated by QL Systems Ltd. The OWCA database contains the full text of all 
Tribunal decisions, complete with a summary of the decision. The words of the 
decisions and summaries themselves are indexed, so that they are searchable. 
Searches can also be performed by keywords, decision number, Vice-Chair or 
Panel, sections of workers' compensation legislation or other statutes considered, 
prior Tribunal decisions considered and Board policies considered. 

A full-text database of the Tribunal's decisions also continued to be available 
through the Infomart Online database service operated by Infomart Dialog Ltd. 

Practice Directions 

A revised set of Practice Directions was published in January 1998. Each practice 
direction was reviewed for changes required due to the coming into force of the 
Workplace Safety and Insurance Act, 1997 as of January 1, 1998. Most required only a 
change in the reference to the appropriate statutory provision, though a few were 
revised more substantially. 

This latest set of practice directions also was published in Volume 44 of the 
W.S.I.A.T. Reporter. Future volumes of the Reporter will provide updates about any 
amendments or revisions to the practice directions. 



24 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1998 



Decisions 

The Publications Department released, to parties and the Board, 2,388 Tribunal 
decisions in 1998. The Publications Department summarized 2,346 decisions in 1998. 

Proposals 

The Tribunal began to explore the possibility of releasing the full text of its 
decisions on CD-ROM, sometime in the future. 



STATISTICAL SUMMARY 

The Tribunal's caseload inventory and productivity increased significantly in 
1998. The Tribunal registered 11,045 appeals and disposed of 7,944 appeals. These 
totals are the highest in the Tribunal's 13-year history. 

The single, largest contribution to the increase in the Tribunal's caseload 
inventory and productivity are the bookmarked appeals. Persons wishing to protect 
their right to appeal at the Tribunal in response to the six-month time limit 
introduced by the Workplace Safety and Insurance Act filed letters of "Intent to 
Appeal" with the Tribunal. There were approximately 3,300 bookmarked appeals 
registered at the Tribunal in 1998. The majority of these appeals were opened and 
disposed of by deactivation, typically within one month. 

Bookmarked appeals made a significant impact on the Tribunal's caseload 
inventory and production statistics in 1998. It is unlikely, however, that the 
Tribunal will register the same volume of bookmarked cases in the future. 
Therefore, in order to provide a meaningful comparison with previous year's 
statistics, the information presented in charts 1 to 5 includes and excludes 
bookmarked appeals. 

None the less, as the statistics show, even when bookmarked appeals are 
excluded, 1998 production figures exceed those of previous years in almost every 
category. 

Cases Received 

The breakdown of incoming cases is presented by year and by appeal type in 
Chart 1 (p. 29). Two significant trends are apparent: the growth in incoming cases 
and the shift in the percentages of appeal types. 

In 1998, the Tribunal received 11,045 cases. This is the highest caseload intake 
ever achieved and the eighth consecutive annual increase. The 3,300 bookmarked 
appeals are contained in the "Preliminary" appeal category. If the bookmarked 



25 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1998 



appeals are excluded from the 1998 incoming cases totals, the 7,745 remaining cases 
represent a 51% increase over the 1997 incoming cases total. Since 1995, excluding 
bookmarked appeals, increases in caseload intake have averaged 47% year over 
year. 

The second trend — percentage shift in appeal types — refers to the increase in 
the "Entitlement-related" appeals and decrease in the "Special Section" appeals. 
The importance of this shift in appeal types is that entitlement appeals are typically 
more complex than special section appeals (with the exception of right to sue 
applications) and therefore dispositions involve more of the Tribunal's resources. 
Referring again to Chart 1, in 1993 entitlement and special section appeals 
represented 59% and 32%, respectively, of all appeals. In 1997, the percentages had 
shifted to 86% and 8% respectively. In 1998, excluding the 3,300 bookmarked 
appeals, the percentages would be 91% and 4% respectively. 

Finally, a broader picture of the caseload trend throughout the adjudicative 
system since 1990 is provided in Chart 9 (p. 36). The chart shows the relationship of 
Workplace Safety and Insurance Board appeals to the Tribunal's caseload. 



Case Dispositions 



The breakdown of cases disposed of (closed or deactivated) in 1998 is shown in 
Chart 2 (p. 30). In 1998, the Tribunal disposed of 7,944 cases. This represents the 
highest disposition total, and this is the fourth consecutive year dispositions have 
increased over the previous year. On average, dispositions have increased 19% each 
year from 1994 to 1997. In 1998, however, dispositions increased 158% over 1997. If 
the 3,300 bookmarked appeals were excluded from the 1998 disposition total, the 
increase over 1997 would be 51%, the increase over the 1995 would be 117%. 

A breakdown of dispositions by processing stage is presented in Chart 3 (p. 31). 
Appeals were most likely to be disposed of prior to a hearing, with the exception of 
right to sue applications. Dispositions at the pre-scheduling stage were most likely 
to occur for medical examination access and post-decision appeals, at 91% and 61% 
respectively. The entitlement appeal category is represented in two columns; one 
includes the 3,300 bookmarked appeals, the other excludes them. When included, 
the "Before Scheduling" disposition stage is nearly double the "Before Hearing" 
and "After Hearing" disposition stages (64% compared to 12% and 24% 
respectively). When excluded, dispositions at each stage are more widely 
distributed (35% compared to 21% and 44% respectively) and are more typical of 
the Tribunal's historical record of dispositions in which nearly half of all appeals 
are disposed of prior to a hearing. 

Chart 4 (p. 32) provides information regarding the overall completion times, 
i.e., age of cases, for cases disposed of in 1998. The impact of bookmarked appeals 
is shown in the "Within 6 months" column. The totals are presented both with and 
without the 3,300 bookmarked appeals. If bookmarked appeals are included, 62% of 
all dispositions occur within six months; if the bookmarked appeals are excluded, 



26 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



the disposition rate decreases to 35%. By excluding bookmarked appeals, an 
historically more accurate distribution of completion times emerges. Twenty-four 
per cent of all cases were disposed of between 6 and 12 months after being 
registered at the Tribunal, 22% were disposed of between 12 and 18 months after 
being registered and 19% were disposed of more than 18 months after being 
registered at the Tribunal. 



Remaining Inventory 



The Tribunal's inventory from 1985 through 1998 is shown graphically in 
Chart 5 (p. 33). Appeals received and disposed of are represented by the lines, 
while the cumulative inventory (the difference between appeals opened and 
disposed, accumulated each year) by the vertical bars. As the chart shows, the 
Tribunal's rate of incoming appeals to dispositions remained fairly constant until 
the end of 1995, at which time the cumulative inventory was approximately 2,400 
appeals. Throughout 1996, the number of incoming appeals greatly exceeded the 
disposition rate, resulting in a sharp increase in the cumulative inventory to 
approximately 3,500 appeals by year end. In 1997 and 1998, the volume of incoming 
appeals continued to grow at an increasing rate. Although the Tribunal has 
increased its productivity as expressed by the number of dispositions (nearly 400% 
increase since 1990), it has not been able to keep pace with the volume of incoming 
appeals (620% increase since 1990). Consequently, by the end of 1998 the 
cumulative inventory had grown to approximately 8,600 appeals. 

A breakdown of the appeals in the Tribunal's inventory is presented in Chart 6 
(p. 34). Only appeals in key production stages are presented. 

Comparative Statistics for 1 998 Hearings and Decision 
Productivity 

In Chart 7 (p. 34), the Tribunal's workload with respect to the scheduling of 
hearings, number of hearings conducted, cases heard, decisions issued and 
dispositions by decision, is presented for the years 1993 to 1998. 

As shown in the column labeled "Change from prior year," except for the three 
pre-decision categories in 1995, the Tribunal made productivity gains each year 
from 1993 to 1998. A comparison of the production between 1993 and 1998 shows 
that the Tribunal's productivity increased by more than 100% in most of the key 
categories. 

A breakdown of the "Cases Heard" category (not shown on the chart), indicates 
that single adjudicators were used in approximately 60% of all hearings in 1998 and 
the tri-partite panels in approximately 40%. Formal oral hearings continued to be 
the most common hearing type at 77%, written hearings were used in 13% of 



27 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



hearings, the remaining 10% of all hearings in 1998 involved teleconferences and 
panel caucuses. 

Chart 8 (p. 35) shows the breakdown of decision types. Final decisions 
represent the largest decision type (76%), followed by interim decisions (18%) and 
finally reconsideration decisions (6%). 

For cases that received decisions in 1998, the party correspondence data 
indicates a preference for representation by consultants. 

Of the appeals launched by employers, 54% were represented by consultants, 
17% were represented by lawyers, 11% by company personnel, and 10% by the 
Office of the Employer Adviser. The remaining 8% of employers chose to represent 
themselves. 

Of the appeals launched by workers, 43% were represented by consultants, 22% 
were represented by lawyers and legal agencies, 20% by the Office of the Worker 
Adviser and 10% by union representatives. Workers chose to represent themselves 
or retained various non-categorized representation in approximately 5% of the 
cases. 

For right to sue applications, party correspondence indicates that lawyers are 
the representatives in 79% of the cases and consultants in 17% of the cases. 
Non-categorized representation was used in approximately 4% of the cases. 



FINANCIAL MATTERS 

A Statement of Expenditures and Variances for the year ended December 31, 
1998, (Chart 10, p. 37) is included in this report. 

The accounting firm of Deloitte & Touche has completed a financial audit on 
the Tribunal's financial statements for the period ending December 31, 1998. The 
audit reports are included in this report as Appendix B. 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 998 



CHART 1 

Annual Breakdown of Incoming Cases 





1993 


1994 


1995 


1996 


1997 


1998 


INPUT BY TYPE 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. 


(%) 


No. (%) 


Leave 


13 


06 


17 


0.8 


17 


0.7 


12 


0.3 


18 


0.4 


6 o.i 


Right to Sue 


113 


5.2 


49 


2.2 


45 


1.9 


49 


1.4 


46 


0.9 


39 0.4 


Medical Exam 


49 


2.3 


41 


1.9 


26 


1.1 


23 


0.6 


25 


0.5 


1 0.0 


Access 


511 


23.7 


506 


23.0 


467 


20.0 


450 


12.5 


330 


14 


276 15 


Special Section 


686 


31.9 


613 


27.9 


555 


23.7 


534 


14.8 


419 


8.2 


322 2.9 


Preliminary (not yet specified) 





0.0 





0.0 





0.0 





0.0 


80 


1.6 


3625 32.8 


Pension 


84 


3.9 


32 


1.5 


12 


0.5 


33 


0.9 


35 


0.7 


26 0.2 


N.E.L/F.E.L. * 


13 


0.6 


34 


1.5 


66 


2.8 


257 


7.1 


252 


4.9 


389 3.5 


Commutation 


36 


1.7 


35 


1.6 


33 


1.4 


42 


1.2 


49 


1.0 


33 0.3 


Employer Assessment 


26 


1.2 


58 


2.6 


78 


3.3 


170 


4.7 


892 17.4 


734 6.6 


Entitlement 


988 


45.9 


1103 


50.1 


1254 


53.6 


2133 


59.2 


2964 


57.9 


5293 47.9 


Ext post WSIB dec. deadline 





0.0 





0.0 





0.0 





0.0 





0.0 


145 1.3 


Reinstatement 


49 


2.3 


56 


2.5 


63 


2.7 


32 


0.9 


40 


0.8 


15 o.i 


Vocational Rehabilitation ** 


12 


13 


80 


M 


79 


14 


121 


M 


101 


11 


96 09 


Entitlement-related 


1268 


58.9 


1398 


63.5 


1585 


67.8 


2788 


77.3 


4419 


86.3 


10356 93.8 


Judicial Review 


9 


0.4 


8 


0.4 


5 


0.2 


5 


0.1 


3 


0.1 


3 o.o 


Ombudsman Request 


50 


2.3 


35 


1.6 


50 


2.1 


49 


1.4 


36 


0.7 


16 0.1 


Reconsideration 


63 


2.9 


74 


3.4 


95 


4.1 


131 


3.6 


165 


3.2 


301 2.7 


Clarification *** 





io 





QM 





10 





1Q 





10 


ifi 


Post-decision 


122 


5.5 


117 


5..0 


150 


4.2 


185 


3.6 


204 


1.8 


320 0.8 


No Jurisdiction 


77 


3.6 


73 


3.3 


48 


2.1 


98 


2.7 


76 


1.5 


47 0.4 


TOTAL 


2153 




2201 




2238 




3605 




5118 




11045 


* NOTE: This category represents appea 


s related to non-economic loss and future economic loss 


pensior 


criteria 


introduced by Bill 162. 
























** NOTE: This category represents appeals related to the increased vocational rehabilitation requirements introduced by 


Bill 162. 
























*** NOTE: There were 4 clarification appeals opened prior 


to 1 993 

















29 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 998 



CHART 2 

Annual Breakdown of Case Dispositions 





1993 


1994 


1995 


1996 


1997 


1998 


OUTPUT BY TYPE 


No. 


(%) 


No 


(%) 


No. 


(%) 


No. 


1%) 


No. 


(%) 


No. (%) 


Leave 


31 


1.7 


15 


0.8 


15 


0.7 


16 


0.6 


11 


0.4 


12 0.2 


Right to Sue 


101 


5.4 


84 


4.7 


57 


2.7 


49 


2.0 


74 


2.4 


39 0.5 


Medical Exam 


54 


2.9 


40 


2.2 


29 


1.4 


26 


1.0 


24 


0.8 


11 0.1 


Access 


522 


28.0 


499 


27.8 


475 


22.2 


469 


18.7 


359 


11.7 


261 13 


Special Section 


708 


38.0 


638 


35.6 


576 


26.9 


560 


22.3 


468 


15.2 


323 4.1 


Preliminary (not yet specified) 





0.0 





0.0 





0.0 





0.0 


58 


1.9 


2412 30.4 


Pension 


63 


3.4 


49 


2.7 


54 


2.5 


28 


1.1 


26 


0.8 


27 0.3 


N.E.L./F.E.L. * 


3 


0.2 


12 


0.7 


31 


1.4 


58 


2.3 


171 


5.6 


249 3.1 


Commutation 


26 


1.4 


34 


1.9 


29 


1.4 


41 


1.6 


31 


1.0 


40 0.5 


Employer Assessment 


18 


1.0 


22 


1.2 


41 


1.9 


85 


3.4 


211 


6.9 


367 4.6 


Entitlement 


794 


42.6 


770 


43.0 


1112 


51.9 


1307 


52.0 


1687 


54.9 


4041 50.9 


Ext post WSIB dec. deadline 





0.0 





0.0 





0.0 





0.0 





0.0 


4 0.1 


Reinstatement 


34 


1.8 


28 


1.6 


57 


2.7 


56 


2.2 


45 


1.5 


36 0.5 


Vocational Rehabilitation ** 


25 


L3 


52 


2J 


65 


10 


83 


13 


102 


13 


94 L2 


Entitlement-related 


963 


51.6 


967 


54.0 


1389 


64.8 


1658 


66.0 


2331 


75.9 


7270 91.5 


Judicial Review 


15 


0.8 


3 


0.2 


7 


0.3 


6 


0.2 


6 


0.2 


3 o.o 


Ombudsman 


42 


2.3 


42 


2.3 


42 


2.0 


52 


2.1 


46 


1.5 


23 0.3 


Reconsideration 


61 


3.3 


63 


3.5 


85 


4.0 


125 


5.0 


114 


3.7 


275 3.5 


Clarification *** 





0.0 





0.0 





0.0 





0.0 





0.0 


o.o 


Post-decision 


118 


6.3 


108 


6.0 


134 


6.3 


183 


7.3 


166 


5.4 


301 3.8 


No Jurisdiction 


76 


4.1 


79 


4.4 


43 


2.0 


111 


4.4 


108 


3.5 


50 0.6 


TOTAL 


1865 




1792 




2142 




2512 




3073 




7944 


* NOTE: This category represents appeals related to the 


non-economic 


loss and future 


economic loss pension criteria 


introduced by Bill 162. 
























** NOTE: This category represents appeals related to the increased vocational rehabilitation requirements introduced by 


Bill 162. 
























*** NOTE: There were 4 clarification appeals closed 


prior to 1993. 

















30 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 99S 



CHART 3 

Case Dispositions in 1998 

(by Processing Stage and by Appeal Category) 





Medical Exam 


Right 


Entitlement 


Entitlement 


Post 




& Access 


to Sue 


IncI. Book 
Marked 


Excl. Book 
Marked 


Decision 


Before Scheduling 












Withdrawn by Appellant 


220 


4 


96 


96 


3 


Settled at Tribunal 


2 














Made Inactive or No Reply 








3843 


543 


124 


Found Non-jurisdictional 


4 





69 


69 





Re-Activated 








476 


476 





Other 


23 


1 


235 


235 


58 


Subtotal 


249 


5 


4719 


1419 


185 


Per cent of Appeal Total 


91.5% 


12.5% 


64.4% 


35.2% 


61.5% 


Before Hearing 












Withdrawn by Appellant 





3 


140 


140 





Settled at Tribunal 

















Made Inactive or No Reply 


1 


1 


491 


491 





Re-Activated 








228 


228 





Other 








1 


1 





Subtotal 


1 


4 


860 


860 





Per cent of Appeal Total 


0.4% 


10.3% 


11.7% 


21.3% 


0.0% 


After Hearing 












Withdrawn by Appellant without Decision 














2 


Made Inactive or No Reply 








109 


109 


2 


Re-Activated 








21 


21 





Disposed Of following Tribunal Decision 


22 


30 


1623 


1623 


112 


Subtotal 


22 


30 


1753 


1753 


116 


Per cent of Appeal Total 


8.1% 


76.9% 


23.9% 


43.5% 


38.5% 


TOTAL 


272 


39 


7332 


4032 


301 



31 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 998 



CHART 4 

Distribution of Completion Times 









Percentag 


e of Case Dispositions 










Within 


Between 6 


Between 12 


More than 


Total 




6 Months 


and 12 Months 


and 18 Months 


1 8 Months 




Medical Exam and Access 


245 


90% 


24 


9% 


2 


1% 


1 


.03% 


272 


Right to Sue 


8 


21% 


15 


38% 


9 


23% 


7 


18% 


39 


Reconsideration 


114 


41% 


127 


46% 


29 


11% 


5 


2% 


275 


Ombudsman b Judicial Review 


4 


15% 


15 


58% 


5 


19% 


2 


8% 


26 


Entitlement,* incl. Book Marked 


4553 


62% 


917 


13% 


976 


13% 


886 


12% 


7332 


Total including 3,300 Book Marked 


4924 


62.0% 


1098 


13.8% 


1021 


12.9% 


901 


11.3% 


7944 


Total excluding 3,300 Book Marked 


1624 


35.0% 


1098 


23.6% 


1021 


22.0% 


901 


19.4% 


4644 


* Note: The Entitlement appeal category also includes leave applications, 


reinstatement appeals, vocational rehabilitation 


appeals, employer assessments 


pension appeals 


commutation appeals 


wage loss appeals 


and appeals deemed to be 


jurisdiction issues. 





















32 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 998 



CHART 5 

Cases Received, Case Dispositions and 

Remaining Case Inventory 



12000 



1000 



8000 



6000 



4000 



2000 



1985 1986 1987 1988 1989 1990 1991 1992 1993 1994 1995 1996 1997 1998 



RECEIVED 
TOTAL 



DISPOSED 
TOTAL 



INVENTORY 
(Remaining Cases) 



33 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 998 



CHART 6 

Distribution of Cases in Inventory 

(as at December 31, 1998) 





All Appeal Types 


PRE TCO PROCESSING 




Cases on Waiting List 


1551 


CASES IN PROCESS 




Case Record Preparation 


379 


Pre-scheduling in TCO* 


1197 


Scheduling (or Rescheduling) 


1011 


Awaiting Hearing at WSIAT 


712 


Post-hearing, TCO* or OCC** Follow-up 


860 


WSIAT Decision-writing 


592 


Closing Process 


178 


Subtotal 


4929 


TOTAL (All Cases) 


6480 


* TCO refers to the Tribunal Counsel Office. 




** OCC refers to the Office of the Counsel to the Chair. 





CHART 7 

Scheduling, Hearings and Decisions 





1993 


1994 


1995 


1996 






Na 


Chanqe from 
prior year 


Na 


Chanqe from 
prior year 


Na 


Chanqe from 
prior year 


Scheduling Dates Arranged 


1580 


1697 


7% 


1591 


-6% 


2032 


28% 


Hearings Conducted 


1239 


1415 


14% 


1332 


-6% 


1563 


175 


Cases Heard 


1120 


1299 


16% 


1223 


-6% 


1449 


18% 


Decisions Issued 


907 


1031 


14% 


1403 


36% 


1460 


4% 


Case Dispositions by Decision 


839 


862 


3% 


1148 


33% 


1302 


13% 






1997 




1998 










No, 


Chanqe from 


No, 


Chanae from 


Chanae from 








prior year 




prior year 


1993 




Scheduling Dates Arranged 




2403 


18% 


3051 


27% 


93% 




Hearings Conducted 




2066 


32% 


2634 


27% 


113% 




Cases Heard 




1942 


34% 


2481 


28% 


122% 




Decisions Issued 




1734 


19% 


2392 


38% 


1 64% 




Case Dispositions by Decision 




1524 


17% 


1788 


17% 


113% 





34 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 998 



CHART 8 

Decisions Issued in 1998 



Interim Decisions 437 




Reconsideration Decisions* 143 



Final Decisions 1,812 



* Reconsideration decisions include rulings at the threshold level as well as rulings 
at the merits level. 



35 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 998 



Chart 9 

Relationship of WSIAT Caseload to WSIB Process 







1990 


1992 




1994 


1996 


1997 


1998 


No. of WSIB Claims 




473,407 


377,019 




370,444 


345,606 


341,178 


345,832 


WSIB Decisions: * 
FEl/PD 
TT/Supp 




152,876 
97,684 


185,763 
96,414 




195,289 
76,800 


195,949 
65,149 


194,232 
60,047 


192,534 
56,259 


Objections to 
WSIB decisions ** 


DRB 
HB 


-13,854 
- 4,634 


DRB -21,580 
HB - 5,997 


DRB 
HB 


- 28,091 
-12,716 


11,219 


10,869 


11,501 


WSIB Final Resolutions 




2,963 


3,883 




5,628 


10,232 


11,957 


10,208 


Appeals to WSIAT 




1,534 


1,806 




2,201 


3,605 


5,118 


11,045 


WSIAT Files Completed 




1,593 


1,664 




1,792 


2,512 


3,073 


7,944*** 


WSIAT Inventory 




1,590 


1,535 




2,232 


3,521 


5,566 


8,667 


NOTES: 

* Denotes the number of decisions made in respect of permanent and temporary impairment; in 1994 and following 

years the number of decisions includes FEL reviews. 
** DRB = Decision Review Branch, HB = Hearings Branch 
*** Includes 3,300 "book mark" appeals. 



36 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1998 



CHART 10 

Statement of Expenditures and Variances 



Workplace Safety and Insurance Appeals Tribunal 
1 998 Statement of Expenditures and Variances 
as at December 31, 1998 (In $000's) 








1998 
Budget 


1998 
Actual 


Variance 

$ % 


Salaries & Wages 

Employee Benefits 

Transportation & Communication 

Services 

Supplies & Equipment 


8029.0 
1,361.0 

583.0 
5,604.0 

385.0 


7,183.0 
1,111.0 

705.0 
4,695.0 

315.0 


846.0 

250.0 

(122.0) 

909.0 

70.0 


10.54 
18.37 
20.93 
16.22 
18.18 


TOTAL OPERATING EXPENDITURES 


15.962.0 


14,009.0 


1,953.0 


12.24 


Capital Expenditures 


0.0 


224.0 


(224.0) 




TOTAL EXPENDITURES 


15,962.0 


14,233.0 


1,729.0 


10.83 


Less: Interest Revenue 


0.0 


38.0 


38.0 




TOTAL 


15,962.0 


14,195.0 


1,767.0 


11.07 



37 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 998 



Appendix A 



VICE-CHAIRS AND MEMBERS IN 1 998 

This is a list of Vice-Chairs and Members whose Order-in-Council 
appointments were active at the end of the reporting period. 

Full-time 



Chair 

Strachan, Ian J. 

Vice-Chairs 

Ballam, Dianne 
Bigras, Jean Guy 
Dechert, Ken 
Gehrke, Linda 
Keil, Martha 



Members Representative of Workers 

Crocker, James 
Jackson, Faith 

Members Representative of Employers 

Barbeau, Pauline 
Copeland, Susan 



Kroeker, Larry 
McCombie, Nick 
Moore, John 
Sutherland, Sara 



Robillard, Maurice 



Meslin, Martin 



Part-time 



Vice-Chairs 

Alexander, Judith 
Carroll, Tom 
Cook, Brian 
Farrer, Jennifer Bradley 
Faubert, Marsha 
Flanagan, William 
Frazee, Catherine 
Kenny, Maureen 



Libman, Peter 
Marafioti, Victor 
McGrath, Joy 
Mclntosh-Janis, Faye 
Mole, Ellen 
Newman, Elaine 
Onen, Zeynep 
Renault, Audrey 



39 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 998 



Robeson, Virginia 
Sajtos, Joanne 

Members Representative of Workers 

Anderson, James 
Beattie, David 
Besner, Diane 
Felice, Douglas 
Ferrari, Mary 

Members Representative of Employers 

Apsey, Robert 
Donaldson, Joseph 
Fay, Carole Ann 
Howes, Gerald 
Nipshagen, Gerry 



Sandomirsky, Janice 
Signoroni, Antonio 



Klym, Peter 
Lebert, Ray 
Rao, Forrunato 
Timms, David 



Robb, C. James 
Sanscartier, Robert 
Seguin, Jacques 
Young, Barbara 



VICE-CHAIRS AND MEMBERS - 
REAPPOINTMENTS 



Alexander, Judith 
Anderson, James 
Besner, Diane 
Barbeau, Pauline 
Copeland, Susan 
Crocker, James 
Donaldson, Joseph 
Farrer, Jennifer Bradley 
Fay, Carole Ann 
Felice, Douglas 
Ferrari, Mary 
Howes, Gerald 
Jackson, Faith 
Klym, Peter 
Lebert, Ray 
Libman, Peter 
Mclntosh-Janis, Faye 
Meslin, Martin 
Mole, Ellen 
Newman, Elaine 
Nipshagen, Gerry 
Rao, Forrunato 
Renault, Audrey 
Robillard, Maurice 



January 31, 1998 
May 4, 1998 
January 13, 1998 
January 1, 1998 
January 1 & June 15, 1998 
January 1, 1998 
January 1, 1998 
January 31, 1998 
January 1, 1998 
May 14, 1998 
May 14, 1998 
August 1, 1998 
January 1, 1998 
May 14, 1998 
January 1, 1998 
Feb 14, 1998 
May 14, 1998 
January 1, 1998 
January 31, 1998 
March 16, 1998 
June 15, 1998 
February 11, 1998 
January 31, 1998 
January 1, 1998 



40 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 998 



Sandomirsky, Janice 
Seguin, Jacques 
Thompson, Patti* 
Timms, David 
Young, Barbara 



July 1, 1998 
July 1, 1998 
January 11, 1998 
May 4, 1998 
February 17, 1998 



NEW APPOINTMENTS DURING 1 998 



Full-time 



Vice-Chair 

Linda Laine Gehrke 

Part-time 



June 1, 1998 



Vice-Chairs 

Thomas C.K. Carroll 
E. Joanne Sajtos 

Member Representative of Employers 

Robert Sanscartier 



June 1, 1998 
May 27, 1998 



June 29, 1998 



SENIOR STAFF 



The following is a list of the senior staff who were employed at the Tribunal during 
the reporting year. 



Janet Geisberger 
Doug Jago 
Linda Moskovits 
Beverley Pavuls 
Carole Prest 
Eleanor Smith 
Peter Taylor 



Director, Human Resources & Labour Relations 

Director and General Manager 

Chief Information Officer 

Chief Administrative Officer 

Counsel to the Tribunal Chair 

Tribunal General Counsel 

Manager, Financial Administration 



Patti J. Fuhrman-Thompson, part-time Member representative of workers, passed 
away on August 1, 1998. 



41 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1998 



MEDICAL COUNSELLORS 



The following is a list of the Tribunal's Medical Counsellors. 

Dr. John D. Atcheson Psychiatry 

Dr. John Duff General Surgery 

Dr. Ross Fleming Neurosurgery 

Dr. Wilfred Goodman Otolaryngology 

Dr. Gordon A. Hunter Orthopaedic Surgery 

Dr. John S. Speakman Ophthalmology 

Dr. Anthony L. Weinberg Internal Medicine 



42 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



APPENDIX B 



WORKPLACE SAFETY AND INSURANCE APPEALS TRIBUNAL 

REPORT AND FINANCIAL STATEMENTS 
December 31, 1 998 

Auditors' Report 

To the Workplace Safety and Insurance Appeals Tribunal 

We have audited the balance sheet of the Workplace Safety and Insurance 
Appeals Tribunal as at December 31, 1998 and the statement of operations for the 
year then ended. These financial statements are the responsibility of the Tribunal's 
management. Our responsibility is to express an opinion on these financial 
statements based on our audit. 

We conducted our audit in accordance with generally accepted auditing 
standards. Those standards require that we plan and perform an audit to obtain 
reasonable assurance whether the financial statements are free of material 
misstatement. An audit includes examining, on a test basis, evidence supporting 
the amounts and disclosures in the financial statements. An audit also includes 
assessing the accounting principles used and significant estimates made by 
management, as well as evaluating the overall financial statement presentation. 

In our opinion, these financial statements present fairly, in all material respects, 
the financial position of the Workplace Safety and Insurance Appeals Tribunal as at 
December 31, 1998 and the results of its operations for the year then ended in 
accordance with generally accepted accounting principles. 

Deloitte & Touche, LLP 
Chartered Accountants 
Toronto, Ontario 
May 12, 1999 



43 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 998 



BALANCE SHEET 
December 31, 1 998 



ASSETS 

Cash 

Receivable from Workplace Safety and 

Insurance Board (Schedule 1 ) 
Salaries and wages recoverable (Note 3) 
Advances 



LIABILITIES 

Bank overdraft 

Accounts payable and accrued liabilities 
Operating advance from Workplace 
Safety and Insurance Board (Note 4) 



1998 



900 



3,524,487 

37,893 

9,011 

$ 3,572,291 



$ 335,260 
1,837,031 

1,400,000 

$ 3,572,291 



1997 

$ 1,425,000 

2,168,500 

10,300 
$ 3,603,800 



2,203,800 
1,400,000 

$ 3,603,800 



Approved on behalf of the Workplace Safety and Insurance Appeals Tribunal 
I.J. Strachan, Chairman 



44 



Workplace Safety and Insurance Appeals Tribunal 



Annual Report 1 99S 



STATEMENT OF OPERATIONS 
Year ended December 31, 1 998 



OPERATING EXPENSES 

Salaries and wages 

Employee benefits 

Transportation and communication 

Services 

Supplies and equipment 
TOTAL OPERATING EXPENSES 

CAPITAL EXPENSES 
TOTAL EXPENSES 

Less: Bank interest income 



1998 



1997 



7,183,073 


7,217,100 


1,110,984 


1,325,800 


704,746 


625,800 


4,495,844 


3,690,400 


315,455 


279,000 


13,810,102 


13,138,100 


223,666 


6,000 


14,033,768 


13,144,100 



(37,950) 



(33,100) 



NET RECOVERABLE EXPENDITURES 

FUNDING REVENUE 

NET RESULT FOR THE YEAR 



13,995,818 
13,995,818 



13,111,000 
13,111,000 



45 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1998 



NOTES TO THE FINANCIAL STATEMENTS 
December 31, 1998 

1. GENERAL 

The organization was originally created by the Workers' Compensation 
Amendment Act. S.O. 1984, Chapter 58 - Section 32, which came into force on 
October 1, 1985. On January 1, 1998, the Tribunal changed its name from Workers' 
Compensation Appeals Tribunal to Workplace Safety and Insurance Appeals 
Tribunal pursuant to the Workplace Safety and Insurance Act 1997. 

The purpose of the Tribunal is to hear, determine and dispose of in a fair, 
impartial and independent manner, appeals by workers and employers in 
connection with decisions, orders or rulings of the Workplace Safety and Insurance 
Board (formerly Workers' Compensation Board), and any matters or issues 
expressly conferred upon the Tribunal by the Act. 

2. SIGNIFICANT ACCOUNTING POLICIES 

The Tribunal's financial statements are prepared in accordance with generally 
accepted accounting principles. 

Revenue and expenses 

Revenue and expenses are recognized on an accrual basis. 

Capital expenditures 

All expenditures of a capital nature are expensed in the year of acquisition. 

3. SALARIES AND WAGES RECOVERABLE 

Salaries and wages recoverable consist of an amount recoverable from the 
Ontario Human Rights Commission for an employee who was seconded to the 
Commission. 

4. OPERATING ADVANCE FROM WORKPLACE SAFETY AND INSURANCE 
BOARD 

The operating advance is interest-free with no specific terms of repayment. 

5. STATEMENT OF CHANGES IN FINANCIAL POSITION 

A statement of changes in financial position has not been presented as the 
information which would be included therein is determinable from the statements 
provided. 



46 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1 998 



6. YEAR 2000 ISSUE 

The Year 2000 Issue arises because many computerized systems use two digits 
rather than four to identify a year. Date-sensitive systems may recognize the year 
2000 as 1900 or some other date, resulting in errors when information using year 
2000 dates is processed. In addition, similar problems may arise in some systems 
which use certain dates in 1999 to represent something other than a date. The 
effects of the Year 2000 Issue may be experienced before, on, or after January 1, 
2000, and, if not addressed, the impact on operations and financial reporting may 
range from minor errors to significant systems failure which could affect the 
Tribunal's ability to conduct normal operations. It is not possible to be certain that 
all aspects of the Year 2000 Issue affecting the Tribunal, including those related to 
the efforts of the Workplace Safety and Insurance Board, suppliers, or other third 
parties, will be fully resolved. 



47 



Workplace Safety and Insurance Appeals Tribunal Annual Report 1998 



SCHEDULE OF RECEIVABLE FROM WORKPLACE SAFETY 
AND INSURANCE BOARD 
Year ended December 31, 1 998 



FUNDING REVENUE 

REIMBURSEMENT FROM WORKPLACE 
SAFETY AND INSURANCE BOARD 

CHANGE IN RECEIVABLE FROM WORKPLACE 
SAFETY AND INSURANCE BOARD 

RECEIVABLE FROM WORKPLACE SAFETY 
AND INSURANCE BOARD, 
BEGINNING OF YEAR 2,168,500 1,885,000 

RECEIVABLE FROM WORKPLACE SAFETY 
AND INSURANCE BOARD, 
END OF YEAR $ 3,524,487 $ 2,168,500 





Schedule 1 


1998 


1997 


$ 13,995,818 


$13,111,000 


(12,639,831) 


(12,827,500) 


1,355,987 


283,500 



48